In a landmark decision on Monday, the Supreme Court determined that former President Trump has presumptive immunity regarding his efforts to persuade then-Vice President Mike Pence to overturn the 2020 presidential election results by certifying slates of so-called “fake electors” on January 6, 2021.
This ruling was part of the justices’ broader opinion on presidential immunity, which established that core presidential powers are exempt from criminal prosecution. The case will now return to a lower court to determine if Trump’s actions leading up to January 6 qualify for this immunity.
Trump is accused of attempting to “enlist” Pence to “fraudulently alter the election results” in seven pivotal swing states. Chief Justice Roberts emphasized that any discussions between the president and vice president about their official responsibilities constitute official conduct. Presiding over the certification of presidential election results is both a constitutional and statutory duty of the vice president.
Roberts stated, “The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
However, the chief justice did not definitively rule on whether Trump’s specific actions are immune from criminal prosecution, leaving this determination to the lower courts. Roberts noted, “The question then becomes whether that presumption of immunity is rebutted under the circumstances.”
The lower courts will also need to decide if other allegations against Trump fall under presidential immunity, including his interactions with state officials, private parties, and the general public. Nevertheless, the justices have already concluded that some allegations are directly related to Trump’s official duties and are thus protected by absolute immunity.
Among these allegations is Trump’s purported use of the “power and authority” of the Justice Department to “conduct sham election crime investigations.” It is alleged that he met with the acting attorney general and other senior officials in the DOJ and the White House to discuss these investigations.
Roberts explained that since the executive branch has the “exclusive authority and absolute discretion” to determine which crimes to investigate and prosecute, Trump is immune from criminal prosecution for these actions. He wrote, “The President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
In his federal election subversion case, Trump faces four counts and has pleaded not guilty.
